2025:HHC:16876 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.8359 of 2024 Date of Decision: 30.05.2025 _______________________________________________________ Sunder Kumar …….Petitioner Versus State of H.P. and Others ….Respondents _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. Vikrant Chandel, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General, with Mr. Ravi Chauhan, Deputy Advocate General, for State. ____________________________________________________ Sandeep Sharma, Judge (oral): Petitioner herein, who is JBT, is aggrieved of order dated 09.08.2024 (Annexure P-2), whereby he has been transferred from GPS Ghaini Dhar, Education Block Seraj-I to GPS Dhobadhar, Education Block Seraj-I, against vacant post, in condonation of short stay. 2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Vikrant Chandel, learned counsel representing the petitioner is that impugned transfer order is in violation of the Transfer Policy, formulated by the Government of Himachal Pradesh, because petitioner has not completed normal tenure of posting at present station. While making this Court peruse pleadings adduced on record, which are duly 1Whether the reporters of the local papers may be allowed to see the judgment? 2025:HHC:16876 -2- supported by way of an affidavit, Mr. Vikrant Chandel, learned counsel representing the petitioner states that prior to petitioner’s transfer to GPS Ghaini Dhar, Education Block Seraj-I, he was posted at GPS Bagachanogi, Education Block, Seraj-I, which is at a distance of 81 kilometers from GPS Ghaini Dhar, Education Block Seraj-I. He further states that prior to issuance of impugned transfer order, petitioner has already remained posted in sub-cadre area twice, i.e. GPS Bagachanogi, Education Block, Seraj-I and GPS Damno, Education Block Seraj-I, but yet again, he is being transferred to GPS Dhobadhar, Education Block Seraj-I, which is again a sub-cadre area. While referring to the Transfer Policy, formulated by the Government of Himachal Pradesh, Mr. Chandel states that in terms of afore Policy, an employee cannot be transferred to another station without his/her having completed normal tenure of posting at one station. He further states that employee transferred from a sub-cadre area, cannot be again transferred to another sub-cadre area, rather, in terms of Policy, he is required to be given station of his choice. 3. While referring to the reply filed by the respondents, Mr. Chandel, learned counsel representing the petitioner states that specific plea raised by the petitioner with regard to his posting in sub- cadre area on two occasions has been not denied. He further submitted that transfer of the petitioner from the present place of 2025:HHC:16876 -3- posting has been effected on the basis of some D.O. note issued by an extra-constitutional authority and as such, it is not sustainable. He submitted that since factum with regard to issuance of D.O. note, has been not specifically denied by the respondents in their reply, that stands duly established on record and as such, in light of judgment passed by Division Bench of this Court in CWP No.2862 of 2021, titled Vipender Kalta Vs. State of H.P. and Others, decided on 20.07.2021, impugned transfer order deserves to be quashed and set-aside. 4. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General while supporting the impugned transfer order, vehemently argued that though petitioner has not completed normal tenure of posting at present station, but since it is not in dispute that he remained posted in the vicinity of afore station for quite long, no illegality can be said to have been committed by the respondents while passing impugned transfer order. While seriously refuting allegation of the petitioner that his transfer has been effected on the basis of some D.O. note issued by an extra-constitutional authority, Mr. Kahol argued that perusal of record nowhere suggests that impugned transfer order has been issued on the basis of some D.O. note, rather, same has been issued with the approval of the competent authority, that too, on the proposal made by the 2025:HHC:16876 -4- Directorate. While referring to the Transfer Policy, formulated by the Government of Himachal Pradesh, Mr. Kahol states that afore Policy does not bar an employer to post an employee twice in hard/sub- cadre area, rather in administrative exigency, an employee can be again sent to hard/tribal area for two-three tenures. While referring to the reply filed by the respondents, Mr. Kahol states that since at present there is no teacher at GPS Dhobadhar, Education Block Seraj-I and on account of non-availability of teachers, studies of students are suffering, petitioner has been sent to aforesaid school. 5. While controverting the aforesaid submission of learned Additional Advocate General, Mr. Vikrant Chandel, learned counsel representing the petitioner, on instructions, states that now one Mr. Tek Chand, JBT, has already joined at GPS Dhobadhar, Education Block Seraj-I, and as such, it cannot be said that on account of non- availability of teacher, studies of nine students, who are studying in afore school, are suffering. 6. Having heard learned counsel representing the parties and perused material available on record, this Court finds that petitioner was transferred to GPS Ghaini Dhar, Education Block Seraj- I, on 18.05.2023, meaning thereby, he has not completed normal tenure of posting at present station. Though, it came to be vehemently argued at the behest of respondents-State that prior to issuance of 2025:HHC:16876 -5- impugned transfer order, petitioner remained posted in the vicinity of GPS Ghaini Dhar, Education Block Seraj-I, but such submission deserves outright rejection, being totally contrary to record. 7. As per pleadings adduced on record, especially reply filed by the respondents, petitioner, prior to his posting at GPS Ghaini Dhar, Education Block Seraj-I, was posted at GPS, Bagachanogi, Education Block Seraj-I, which is at a distance of 81 kilometers from the present place of posting, if it is so, it cannot be said that petitioner remained posted in the vicinity of present place of posting for more than three years. Once Transfer Policy itself provides for a minimum tenure of three years at one station, coupled with the fact that there is no administrative exigency to transfer the petitioner from the present place of posting, impugned transfer order, being passed in violation of Transfer Policy, deserves to be quashed and set-aside. 8. Factum with regard to issuance of D.O. note by some extra-constitutional authority has not been specifically refuted by the respondents/State in its reply, rather, on account of evasive reply, plea of petitioner with regard to issuance of D.O. note deserves to be accepted. Though pursuant to the order passed by this Court, record with regard to transfer of the petitioner has been made available, but there is no mention of D.O. note in the same. Though perusal of impugned transfer order nowhere indicates that transfer of the 2025:HHC:16876 -6- petitioner has been effected on the basis of some D.O. note, but once factum with regard to issuance of D.O. note has not been specifically denied, allegation of the petitioner with regard to issuance of D.O. note deserves to be admitted. Division Bench of this Court in Vipender Kalta (supra), has held as under: “32. The Hon'ble Supreme Court as also this Court and various other High Courts have held in certain cases that it would be permissible for the administrative authority to consider recommendations of the MLAs or MPs or Ministers concerned, that too, in case they have received complaints regarding the working of the government servants seeking their transfer, however even then the final decision in this regard has to be taken by the administrative department as the politician cannot don the rule of administration. 33. Even otherwise, upholding such kind of transfers would mean compromising with the rule of law, which is a basic feature of the Constitution, which permeates the whole of the constitutional fabric and is an integral part of the constitutional structure. 34. Rule of law contemplates governance of laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. 35. Since the recommendations to transfer the petitioner had been mooted by an extra constitutional authority, who has no role in the functioning and business of the administration, therefore, the impugned transfer of the petitioner on the basis of such recommendations cannot be sustained and is accordingly quashed.” 9. Leaving everything aside, this Court having taken note of the fact that petitioner has not completed normal tenure of posting at present station, coupled with the fact that prior to issuance of impugned transfer order, he has already served in sub-cadre area on 2025:HHC:16876 -7- two occasions i.e. GPS Bagachanogi, Education Block, Seraj-I and GPS Damno, Education Block Seraj-I, he otherwise could not have been again transferred to sub-cadre area i.e. GPS Dhobadhar, Education Block Seraj-I, rather, in terms of Transfer Policy, formulated by the Government of Himachal Pradesh, he ought to have been given station of his choice. 10. Consequently, in view of detailed discussion made hereinabove, present petition is allowed and impugned transfer order dated 09.08.2024 is quashed and set-aside, qua the petitioner only, whose name is figured at Serial No.4 and respondents are directed to let the petitioner continue in the afore station, till the completion of his normal tenure of posting. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any. p` (Sandeep Sharma), Judge May 30, 2025 (Rajeev Raturi)